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Dharmala Kamayya and ors. Vs. Bhimarasetti Mahalakshmi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad849
AppellantDharmala Kamayya and ors.
RespondentBhimarasetti Mahalakshmi
Cases ReferredHarbhagwan v. Tai A. I. R.
Excerpt:
- - the general principle of estoppel similar to res judicata will apply to a case like this. 6. it is clear that the balance of authority is overwhelmingly in favour of the view that, in a case like this, a judgment debtor, who is a party to the execution proceedings and is bound by the decree, is not entitled to deny that he was dispossessed, even though he was not actually evicted......the plaintiff obtained a decree for possession of certain land. in execution he applied for delivery of possession under order 21, rule 35 and delivery was ordered. the finding is that what was affected was no more than a formal delivery of possession. he waited for nearly 12 years after that and then sued again. the question for decision--the defendant having been in possession both before and after the delivery, for a total period of about 20 years--is whether the suit is barred by limitation. the district munsif decreed the suit, but the district judge held that it was time barred, a conclusion in which davadoss, j. concurred in second appeal. he dissented from govind biliraji v. venkata sastrulu [1907] 17 m. l. j. 598 and followed govindasami pillai v. pethaperumal chetty.....
Judgment:
JUDGEMENT

1. The plaintiff obtained a decree for possession of certain land. In execution he applied for delivery of possession under Order 21, Rule 35 and delivery was ordered. The finding is that what was affected was no more than a formal delivery of possession. He waited for nearly 12 years after that and then sued again. The question for decision--the defendant having been in possession both before and after the delivery, for a total period of about 20 years--is whether the suit is barred by limitation. The District Munsif decreed the suit, but the District Judge held that it was time barred, a conclusion in which Davadoss, J. concurred in second appeal. He dissented from Govind Biliraji v. Venkata Sastrulu [1907] 17 M. L. J. 598 and followed Govindasami Pillai v. Pethaperumal Chetty [1918] IND. CAS. 839 which he considered, was binding on him and certain rulings of the Bombay and Allahabad High Courts. The effect of these decisions is this, that, in case where a decree-holder is bound to apply for actual as opposed to symbolical possession, but obtains only the latter, the delivery of possession is a nullity and does not give rise to a fresh period of limitation.

2. Authority on the question is divided. The High Court of Calcutta has invariably taken a view directly opposed to that of the two Courts above referred to. And so has this High Court since the ruling reported in Kocherlakota VenkataKrishna Rao v. Vedveru Venkappa [1904] 27 Mad. 262 until a contrary opinion was expressed (obiter) in Govindasami Pillai v. Pethaperumal Chetty [1918] 44 Ind. C. 839 The controversy would seem to have been concluded by a ruling of the Privy Council Radha Krishna v. Ram Bahadur A. I. R. 1917 P. C. 197 which approved Juggobhundhu Mukerjee v. Ram Chander Bysack [1880] 5 Cal. 534 It is, no doubt, true that both of these were cases where the only delivery to which the decree-holders were entitled was symbolical, but their lordships of the Privy Council laid down a rule of general application to the effect that

symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given.

3. The Bombay High Court considered this rule in Mahadevappa Dundappa v. Bhima Doddappa A. I. R. 1922 Bom. 27 and expressed the opinion that the view previously taken by that Court might, when the occasion arose, have to be reconsidered. In Jobeda Khatun v. Tulsi the rule laid down by the Privy Council was restated and it was followed by Odgers, J. in Ranganatha Iyer v. Srinivasa Aiyangar A. I. R. 1926 Mad. 42 In Maharaja Udai Nath Sabi Deo v. Sunderbans Koer A. I. R. 1923 Patna 76 Adami, J. of the Patna Hight Court, followed the Calcutta and Madras decisions. Daniels, J. of the Allahabad High Court in Harpal Kurmi v. Mihan Kurmi A. I. R. 1921 All. 811 held that, in a case, where the warrant

purported to give actual possession, which was the appropriate method of relief, though in the sequel it proved that the procedure adopted was not effective

there was actual delivery, which was sufficient to interrupt adverse possession. He remarked:

It would be destructive of all, respect for law and authority of the Court if it were held in such cases (i. e., cases in which the judgment-debtor stops away at the time of delivery and quietly resumes possession later) that the judgment-debtor could treat the delivery of possession as a nullity and claim to have been in adverse possession from the date of his original entry.

4. Only one other case need be referred to Harbhagwan v. Tai A. I. R. 1926 Lah. 35 in which Jai Lal, J. held that the delivery of symbolical possession

even erroneously amounts to delivery of actual possession so far as the judgment-debtor and his respresentatives are concerned.

5. He added:

It is obvious that a person who is a party to certain legal proceedings is not entitled to question the legality of the procedure adopted in such proceedings except in the manner authorised by law and that is by appeal--if he allows wrong procedure to be followed without effective protest he must be deemed to have acquiesced in it and therefore to be bound by it. The general principle of estoppel similar to res judicata will apply to a case like this.

6. It is clear that the balance of authority is overwhelmingly in favour of the view that, in a case like this, a judgment debtor, who is a party to the execution proceedings and is bound by the decree, is not entitled to deny that he was dispossessed, even though he was not actually evicted. We think that the rule laid down by the Privy Council is so worded as to be of general application and that we must follow it. In the result, the Letters Patent Appeal must be allowed. The decree of the Munsif is restored with costs throughout.


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